VI-A APPEALS

35. Appeals to Commissioner (Appeals)

35. (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) hereinafter in this Chapter referred to as the Commissioner (Appeals) within three months from the date of the communication to him of such decision or order.

Provided that the Commissioner (Appeals) may if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three moths allow it to be presented within a further period of three months.

(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.

35A. Procedure in appeal

35A. (1) The Commissioner (Appeals) shall given an opportunity to the appellant to be heard if he so desires.

(2) The Commissioner (Appeals) may at the hearing of an appeal allow an appellant to go into any ground of appeal nor specified in the ground of appeal if the Commissioner (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(3) The Commissioner (Appeals) may after making such further inquiry as may be necessary pass such order as he think fit confirming modifying or annulling the decision or order appealed against or may refer the case back to the adjudicating authority with such directions as he may thinks fit for a fresh adjudication or decision as the case may be after taking additional evidence if necessary :

Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount or refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order :

Provided Further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded no order requiring the appellant to pay any duty not levied or paid short-levied or short-paid or erroneously refunded shall be passed unless the appellant given notice within the time-limit specified in section 11A to shoe cause against the proposed order.

(4) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination the decision thereon and the reasons for the decision.

(5) On the disposal of the appeal the Commissioner (Appeals) shall communicate the order passed by him to the appellant the adjudicating authority and the Commissioner of Central Excise.

35B. Appeals to the Appellate Tribunal

35B. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -

(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A;

(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act 1963 (54 of 1963) (hereinafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under section 35 as it stood immediately before the appointed day;

(d) an order passed by the Board or the Commissioner of Central Excise either before or after the appointed day under section 35A as it stood immediately before that day :

Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to -

(a) a case of loss of goods where the loss occurs in transit from a factory to a warehouse or to another factory or from one warehouse to another or during the course of processing of the goods in a warehouse or in storage whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty :

Provided Further that the Appellate Tribunal may in its discretion refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where -

(i) in any disputed case other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue the different in duty involved or the duty involved; or

(ii) the amount to fine or penalty determined by such order does not exceed fifty thousand rupees.

(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1) which is pending immediately before the commencement of section 47 of the Finance Act 1984 before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or mater under section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it under that section.

(2) The Commissioner of Central Excise may if he is of opinion that an order passed by the Appellate Collector of Central Excise under section 35 as it stood immediately before the appointed day or the Commissioner (Appeals) under section 35A is not legal or proper direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order.

(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise or as the case may be the other party preferring the appeal.

(4) On receipt of notice that an appeal has been preferred under this section the party against whom the appeal has been preferred may notwithstanding that he may not have appealed against such order or any part thereof file within forty-five days of the receipt of the notice a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if if were an appeal presented within the time specified in sub-section (3).

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within that period.

(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall in the case of an appeal made on or after the 1st day of June 1993 irrespective of the date of demand of duty or of levy of penalty in relation to which the appeal is made be accompanied by a fee of-

(a) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is one lakh rupees or less two hundred rupees;

(b) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than one lakh rupees one thousand rupees :

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).

35C. Orders of Appellate Tribunal

35C. (1) The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit confirming modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with the directions as the Appellate Tribunal may think fit for a fresh adjudication or decision as the case may be after taking additional evidence if necessary.

(2) The Appellate Tribunal may at any time within four years from the date of the order with a view to rectifying any mistake apparent from the record amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal :

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.

(3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Central Excise and the other party to the appeal.

(4) Save as provided in section 35G or section 35L orders passed by the Appellate Tribunal on appeal shall be final.

35D. Procedure of Appellate Tribunal

35D. (1) The provisions of sub-sections (1) (2) (5) and (6) of section 129C of the Customs Act 1962 shall apply to the Appellate Tribunal in the discharged of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act 1962.

[(2) Omitted by Finance Act 1995 w.e.f. 26-5-1995]

(3) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may sitting singly dispose of any case which has been allotted to the Bench of which he is a member where -

(a) in any disputed case other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposed of assessment is in issue or is one of the points in issue the difference in duty involved or the duty involved; or

(b) the amount of fine or penalty involved does not exceed ten lakh rupees.

35E. Power of Board or Commissioner of Central Excise to pass certain orders

35E. (1) The Board may of its own motion call for and examine the record of any proceeding in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may by order direct such Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order.

(2) The Commissioner of Central Excise may of his own motion call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may by order direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of decision or order as may be specified by the Commissioner of Central Excise in his order.

(3) No order shall be made under sub-section (1) or sub-section (2) after the expiry of one year from the date of the decision or orders of the adjudicating authority;

(4) Where in pursuance of an order sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority such application shall be heard by a the Appellate Tribunal or the Commissioner (Appeals) as the case may be as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals including the provisions of sub-section (4) of section 35B shall so far as may be apply to such application.

(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or to the value of goods for the the purposes of assessment of any duty is in issue or is one of the points in issue.

Explanation : For the purposes of this sub-section the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question -

(a) relating to the rate of duty of excise for the time being in force whether under the Central Excise Tariff Act 1985 or under any other Central Act providing for the levy and collection of any duty of excise in relation to any goods on or after the 28th day of February 1986; or

(b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February 1986; or

(c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or

(d) whether any goods fall under a particular heading or sub-heading of the Schedule to the Central Excise Tariff Act 1985 or the Additional Duties of Excise (Goods of Special Importance) Act 1957 or the Additional Duties of Excise (Textiles and Textile Articles) Act 1978 or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board as the case may be granting total or partial exemption form duty; or

(e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.

35EA. Powers of revision of Board or Commissioner of Central Excise in certain cases

35EA. (1) The Board may of its own motion or on the application of any aggrieved person or otherwise call for the examine the record of any proceeding in which a Commissioner of Central Excise has passed any decision or order not being a decision or order passed under sub-section (2) of this section of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying itself as the correctness legality or propriety of such decision or order and may pass such order thereon as it thinks fit.

(2) The Commissioner of Central Excise may of his own motion or on the application of any aggrieved person or otherwise call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying himself as to the correctness legality or propriety of such decision or order and may pass such order thereon as he thinks fit.

(3)(a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if he desires of being heard in his defence.

(b) Where the Board or as the case may be the Commissioner of Central Excise is of the opinion that any duty of excise has not been levied or has been short-levied or short-paid or erroneously refunded no order requiring the affected person to pay any duty not levied or paid short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time limit specified in section 11A to show cause against the proposed order.

(4) No proceedings shall be initiated under sub-section (1) or sub-section (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order :

Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excises (Laws) Amendment Act 1987 the provisions of this sub-section shall have effect as if for the words "six months" the words "one year" were substituted.

(5) Any person aggrieved by any decision or order passed under sub-section (1) or sub-section (2) may appeal to the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act 1986 against such decision or order.

35EE. Revision by Central Government

35EE. (1) The Central Government may on the application of any person aggrieved by any order passed under section 35A where the order is of the nature referred to in the first proviso to sub-section (1) of section 35B annual or modify such order.

Explanation : For the purposes of this sub-section order passed under section 35A includes an order passed under that section before the commencement of section 47 of the Finance Act 1984 against which an appeal has not been preferred before such commencement and could have been if the said section had not come into force preferred after such commencement to the Appellate Tribunal.

(2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made :

Provided that the Central Government may if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months allow it to be presented within a further period of three months.

(3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of two hundred rupees.

(4) The Central Government may of its own motion annual or modify any order referred to in sub-section (1).

(5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section -

(a) in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value and

(b) in any other case unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.

(6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 11A.

35F. Deposit pending appeal of duty demanded or penalty levied

35F. Where in any appeal under this Chapter the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act the person desirous of appealing against such decision or order shall pending the appeal deposit with the adjudicating authority the duty demanded or the penalty levied :

Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person the Commissioner (Appeals) or as the case may be the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.

35G. Statement of case to High Court

35G. (1) The Commissioner of Central Excise or the other party may within sixty days of the date upon which he is served with notice of an order under section 35C (not being an order relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment) by application in the prescribed form accompanied where the application is made by the other party by a fee of two hundred rupees require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section the Appellate Tribunal shall within one hundred and twenty days of the receipt of such application draw up a statement of the case and refer it to the High Court :

Provided that the Appellate Tribunal may if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified allow it to be presented within a further period not exceeding thirty days.

(2) On receipt of notice that an application has been made under sub-section (1) the person against whom such application has been made may notwithstanding that he may not have filed such an application file within forty-five days of the receipt of the notice a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).

(3) If on an application made under sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises the Commissioner of Central Excise or as the case may be the order party may within six months from the date on which he is served with notice of such refusal apply to the High Court and the High Court may if it is not satisfied with the correctness of the decision of the Appellate Tribunal require the Appellate Tribunal to state the case and to refer it and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly.

(4) Where in the exercise of its powers under sub-section (3) the Appellate Tribunal refuses to state a case which it has been required by an applicant to state the applicant may within thirty days from the date on which he receives notice of such refusal withdraw his application and if he does so the fee if any paid by him shall be refunded.

35H. Statement of case to Supreme Court in certain cases

35H. If on an application made under section 35G the Appellate Tribunal is of opinion that on account of conflict in the decisions of High Courts in respect of any particular question of law it is expedient that a reference should be made direct to the Supreme Court the Appellate Tribunal may draw up a statement of the case and refer it through the President direct to the Supreme Court.

35I. Power of High Court or Supreme Court to require statement to be amended

35I. If the High Court or the Supreme Court is not satisfied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf.

35J. Case before High Court to be heard by not less than two judges

35J. (1) When any case has been referred to the High Court under section 35G it shall be heard by a Bench of not less than two judges of the High Court and shall be decided in accordance with the opinion of such judges or of the majority if any of such judges.

(2) Where there is no such majority the judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other judges of the High Court and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it.

35K. Decision of High Court or Supreme Court on the case stated

35K. (1) The High Court or the Supreme Court hearing any such case shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgment.

(2) The costs of any reference to the High Court or the Supreme Court which shall not include the fee for making the reference shall be in the discretion of the Court.

35L. Appeal to the Supreme Court

35L. An appeal shall lie to the Supreme Court from -

(a) any judgment of the High Court delivered on a reference made under section 35G in any case which on its own motion or on an oral application made by or on behalf of the party aggrieved immediately after the passing of the judgment the High Court certifies to be a fit one for appeal to the Supreme Court; or

(b) any order passed by the Appellate Tribunal relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.

35M. Hearing before Supreme Court

35M. (1) The provisions of the Code of Civil Procedure 1908 (5 of 1908) relating to appeals to the Supreme Court shall so far as may be apply in the case of appeals under section 35L as they apply in the case of appeals from decrees of a High Court :

Provided that nothing in this sub-section shall be deemed to affect the provisions of sub-section (1) of section 35K or section 35N.

(2) The costs of the appeal shall be in the discretion of the Supreme Court.

(3) Where the judgment of the High Courts is varied or reversed in the appeal effect shall be given to the order of the Supreme Court in the manner provided in section 35K in the case of a judgment of the High Court.

35N. Sums due to be paid notwithstanding reference etc.

35N. Notwithstanding that a reference had been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court sums due to the Government as a result of an order passed under sub-section (1) of section 35C shall be payable in accordance with the order so passed.

35-O. Exclusion of time taken for copy

35-O. In computing the period of limitation prescribed for an appeal or application under this Chapter the day on which the order complained of was served and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him the time requisite for obtaining a copy of such order shall be excluded.

35P. Transfer of certain pending proceedings and transitional provisions

35P. (1) Every appeal which is pending immediately before the appointed day before the Board under section 35 as it stood immediately before that day and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day :

Provided that the appellant may demand that before proceeding further with that appeal or matter he may be re-heard.

(2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 36 as it stood immediately before that day and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it :

Provided that if any such proceeding or matter relates to an order where -

(a) in any disputed case other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue the difference in duty involved or the duty involved; or

(b) the amount of fine or penalty determined by such order does not exceed ten thousand rupees such proceeding or matter shall continue to be dealt with by the Central Government as if the said section 36 had not been substituted :

Provided Further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter he may be re-heard.

(3) Every proceeding which is pending immediately before the appointed day before the Board or the Commissioner of Central Excise under section 35A as it stood immediately before that day and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the Commissioner of Central Excise as the case may be as if the said section had not been substituted.

(4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall notwithstanding anything contained in section 35Q have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding.

35Q. Appearance by authorised representative

35Q. (1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act otherwise than when required under this Act to appear personally for examination on oath or affirmation may subject to the other provisions of this section appear by an authorised representative.

(2) For the purposes of this section authorised representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf being -

(a) his relative or regular employee; or

(b) any legal practitioner who is entitled to practice in any civil court in India; or

(c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose.

(3) Notwithstanding anything contained in this section no person who was a member of the India Customs and Central Excise Service Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation as the case may be.

(4) No person -

(a) who has been dismissed or removed from Government service; or

(b) who is convicted of an offence connected with any proceeding under this Act the Customs Act 1962 (52 of 1962) or the Gold (Control) Act 1968 (45 of 1968); or

(c) who has become an insolvent shall be qualified to represent any person under sub-section (1) for all times in the case of a person referred to in clause (a) and for such time as the Commissioner of Central Excise or the competent authority under the Customs Act 1962 or the Gold (Control) Act 1968 as the case may be by order determine in the case of a person referred to in clause (b) and for the period during which the insolvency continues in the case of a person referred to in clause (c).

(5) If any person -

(a) who is a legal practitioner is found guilty of misconduct in his professional capacity by any authority entitled to institute proceedings against him an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practice as a legal practitioner;

(b) who is not a legal-practitioner is found guilty of misconduct in connection with any proceedings under this Act by the prescribed authority the prescribed authority may direct that he shall thenceforth be disqualified to represented any person under sub-section (1).

(6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions namely :-

(a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard;

(b) any person against whom any such order or direction is made may within one month of the making of the order or direction appeal to the Board to have the order or direction cancelled; and

(c) no such order or direction shall take effect until the expiration of one month from the making thereof or where an appeal has been preferred until the disposal of the appeal.

36. Definitions

36. In this Chapter -

(a) "appointed day" means the date of coming into force of the amendments to this Act specified in Part II of the Fifth Schedule to the Finance (2) Act 1980;

(b) "High Court" means -

(i) in relation to any State the High Court for that State;

(ii) in relation to a Union Territory to which the jurisdiction of the High Court of a State has been extended by law that High Court;

(iii) in relation to the Union Territories of Dadra and Nagar Haveli and Goa Daman and Diu the High Court at Bombay;

(iv) in relation to any other Union Territory the highest court of civil appeal for that territory other than the Supreme Court of India;

(c) "President" means the President of the Appellate Tribunal.

VI-B PRESUMPTION AS TO DOCUMENTS

36A. Presumption as to documents in certain cases

36A. Where any document is produced by any person or has been seized from the custody or control of any person in either case under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him the court shall -

(a) unless the contrary is proved by such person presume -

(i) the truth of the contents of such document;

(ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by or to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) admit the document in evidence notwithstanding that it is not duly stamped if such document is otherwise admissible in evidence.

36B. Admissibility of microfilms facsimile copies of documents and computer print outs as documents and as evidence

36B. (1) Notwithstanding anything contained in any other law for the time being in force -

(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or

(b) a facsimile copy of a document; or

(c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a computer print out ) if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question; shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder without further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following namely :-

(a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period there was regularly supplied to the computer in the ordinary course of the said activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) throughout the material part of the said period the computer was operating properly or if not then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and

(d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities.

(3) Where over any period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers whether -

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combination of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period in whatever order of one or more computers and one or more combinations of computers all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer and references in this section to a computer shall be construed accordingly.

(4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section a certificate doing any of the following things that is to say -

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purpose of this section -

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities that information if duly supplied to that computer shall be taken to be supplied to it in the course of those activities.

(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation : For the purposes if this section -

(a) "computer" means any device that receives stores and processes data applying stipulated processes to the information and supplying results of these processes; and

(b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation comparison or any other process.

BACK NEXT